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Discovery Institute tries to "swift-boat" Judge
By Kevin Padian and Nick
Posted January 8, 2006
As predictable as sunup, the
Discovery Institute reacted to their drubbing in Federal Court
(Kitzmiller v. Dover Area School Board, 20 December 2005) without
the least introspection. One would have thought that after six weeks of
testimony by both sides in the public debate (there is, of course, no
scientific debate) about evolution and intelligent design, both sides
would say, "Okay, we gave it our best shot," and at least have the common
decency to read the Court's decision before spinmeistering.
Instead, the DI immediately tried to "swift-boat" the judge.
Before the electrons on the pdf of the judge's decision were even
cool, the DI released the following salvo:
The Dover decision is an attempt by an activist federal
judge to stop the spread of a scientific idea and even to prevent
criticism of Darwinian evolution through government-imposed censorship
rather than open debate, and it won't work," said Dr. John West,
Associate Director of the Center for Science and Culture at Discovery
Institute, the nation's leading think tank researching the scientific
theory known as intelligent design.
In the DI's lexicon,
"activist" means someone who says or does things you don't like: the ACLU,
the NCSE, Americans United, and ... oh. A Republican judge from central
Of course, the DI folks aren't activists. They just
sit in their think-tank, performing first-class research for the best
scientific journals, waiting for the awards and accolades from the
scientific and educational communities to come in. (So far, they're still
waiting for the awards, and we're still waiting for the research.)
Apparently it's not "activist" for the Discovery Institute to send their
own "Icons of Evolution" video to the Dover Area School Board (a video
that DASB member William Buckingham apparently bullied teachers to watch –
twice – and was clearly an inspiration to Buckingham in his various
efforts to squelch the teaching of evolution in Dover. Apparently it's not
"activist" to send DI staff to Dover to counsel the school board on how to
promote ID in science classes.
Now, wait. The DI staunchly
maintains that it never said that ID should be taught as science. But it
should be mentioned in science classrooms, apparently, as a stealth
"alternative" to evolution. This is the sneaky approach. Don't bother to
establish ID as science in the scientific community; don't bother to tell
anyone you're teaching a sectarian religious view; just slide it in on the
QT. ID really is, as one observer noted, "the faith that dare not speak
its name." That's now a finding of fact in Federal Court.
Teach ID, or Not to Teach ID?
On the other hand, there is
often a difference between what the DI does and what it says it does.
Take, for instance, this passage from Intelligent Design in Public
School Science Curricula: A Legal Guidebook, by DI associates David
K. DeWolf and Mark E. DeForrest, and the Director of the DI's Center for
Science and Culture, Stephen C. Meyer: "school boards have the authority
to permit, and even encourage, teaching about design theory as an
alternative to Darwinian evolution -- and this includes the use of
textbooks such as Of Pandas and People that present evidence for
the theory of intelligent design."
Hard to see where you'd fit
that in, except in a science class.
It is also worth looking at
what the Discovery Institute was telling its donors in 1999, based on the
now-infamous "Wedge Strategy" document.
Once our research and writing have had time to mature, and
the public prepared for the reception of design theory, we will move
toward direct confrontation with the advocates of materialist science
through challenge conferences in significant academic settings. We will
also pursue possible legal assistance in response to resistance to the
integration of design theory into public school science
And yet, when this event finally occurred – in
Dover, Pennsylvania, in 2004, exactly five years after the 1999 Wedge
Strategy – the Discovery Institute claimed that they did not support
putting ID into science curricula, and furthermore they had never
suggested such a thing.
"Activist" Judge John Jones III
Although the DI uses the same public relations firm as the "Swift
Boat Veterans" did, they picked the wrong guy to keelhaul. Judge John E.
Jones III is a churchgoer, a lifelong Republican, appointed to his Federal
position by President George W. Bush. As a New York Times piece
His supporters include Senators Arlen Specter and Rick
Santorum of Pennsylvania, and his mentor is Tom Ridge, the former
governor of Pennsylvania and homeland security secretary.
Arlen Specter, Tom Ridge, and Rick Santorum. Not exactly your
typical liberal coalition. Wait a minute! Isn't Santorum the one who tried
to introduce Intelligent Design into the "No Child Left Behind" Act?
Doesn't the DI pull his strings when it comes to pronouncements on science
and education? These are heavy hitters, well connected to the current
administration. From the outset, an impartial observer might have expected
that Judge Jones would be predisposed toward the Bush-endorsed concept of
ID. Let's see what else the Times found out.
But Judge Jones is praised by people on both sides of the
aisle as a man of integrity and intellect who takes seriously his charge
to be above partisanship. He appears to define himself less by his party
affiliation than by his connection to the Pennsylvania coal town where
he still lives, and to a family that grabbed education as a rope to
climb out of the anthracite mines, and never let go. Clifford A.
Rieders, a lawyer in Williamsport who is past president of the
Pennsylvania Trial Lawyers Association, said he had found Judge Jones to
be "moderate, thoughtful" and "universally well regarded."
think that his connections are not so politicized, nor is he so
ambitious that he would be influenced in any way by those kinds of
considerations," said Mr. Rieders, a Democrat.
Mr. Ridge called
him a "renaissance man" and "the right kind of person to be presiding
over a trial of such emotional and historic importance." He added, "I
don't think he goes in with a point of view based on anything prior. I
really don't. I think he loves the challenge."
And all this
testimony came in before the decision was rendered.
The Judge saw ID collapse before him
The DI's Dr.
West went on to say of the Judge, "He has conflated Discovery Institute's
position with that of the Dover school board, and he totally misrepresents
intelligent design and the motivations of the scientists who research it."
Not so. The DI was not on trial here; the Judge was merely repeating
statements of the defense's own witnesses, including Drs. Behe and
Minnich, who are fellows of the DI. They acknowledged under oath that ID
cannot qualify as science unless the definition of science is completely
changed to admit the supernatural. Behe acknowledged that under his
definition, astrology would equally qualify as science. They admitted that
ID is more plausible to those that believe in God – a rather peculiar
feature of an allegedly scientific theory. They insisted that the
"Designer" does not have to be supernatural, but were unable to come up
with any credible account or hypothesis of what such a "natural Designer"
would be, or how to test for its existence.
And this is after over
a decade of research by the self-described "nation's leading think tank
researching the scientific theory known as intelligent design."
Not a single peer reviewed paper proposes any concrete test or
advances any solid testable evidence regarding a Designer. Every
major scientific organization in the nation has come out against ID,
saying that it has no business masquerading as science. This week,
Science magazine, the premier journal of American science, named
Evolution as the Scientific Breakthrough of 2005, and specifically
lambasted ID as non-scientific. Dr. Donald Kennedy, editor of
Science, said in an interview with Reuters,
I think what arouses the ire of scientists (about
intelligent design) is ... the notion that it belongs in the same
universe as scientific analysis. -- It's a hypothesis that's not
testable, and one of the important recognition factors for science and
scientific ideas is the notion of testability, that you can go out and
do an experiment and learn from it and change your idea. That's just not
possible with a notion that's as much a belief in spirituality as
intelligent design is.
For over a decade, the DI has claimed
that their notion of ID deserves pride of place alongside conventional
evolutionary theory. But they have refused to publish the peer-reviewed
papers, to present their "research" at scientific conferences, to be held
accountable in the scientific community on any terms whatsoever. This week
they were held accountable in federal court. The results weren't pretty
for ID supporters. It's hard to find a single sentence in the Judge's
139-page decision that offers succor to the DI crowd. It's even harder to
find a place where his judgment erred with respect to the facts. Unless,
of course, the defense's scientific experts were not representing ID
Throughout the trial, Judge Jones let the attorneys on
both sides draw out the testimony they wanted from their witnesses. He
seldom intervened in the questioning, and did not sustain objections from
either side unless they were rooted in correct procedural law. He
frequently said, "well, this is a bench trial, so I'll allow it" to let
both sides present the fullest possible explication of their views. Both
sides had the chance to put everything on the table. They chose their own
witnesses; none were peremptorily excluded (though the defense fought
ferociously to keep Barbara Forrest off the witness stand, knowing the
damage she would do by revealing the religious origins of ID).
Witnesses for both sides had to speak under oath about their side
of the case. The judge did not impugn the testimony of any expert witness,
although he did have some choice words for the prevarications of some
former members of the Dover School Board.
The DI cannot claim that
ID didn't have a fair opportunity to be represented on an equal footing
with science in a public arena. It had its fair chance, but for mysterious
reasons, most of the DI's "expert witnesses" were withdrawn. Apparently
there are too few ID supporters with expertise in the appropriate areas,
because no one was offered by the defense to replace the no-shows.
Judge Jones was clearly as unimpressed as the scientific community
is by the representations of the Discovery Institute's witnesses for the
defense. Michael Behe's remonstrations about the scientific validity of ID
were characterized as "mere assertions," with no empirical evidence. The
plaintiffs showed that Behe, who was on the stand for three days, was
unaware of published, peer-reviewed evidence that demolished his favorite
"irreducibly complex" notions such as the bacterial flagellum and the
blood clotting proteins. In fact, presented with a mountain of published
work to the contrary, he merely sniffed that it was inadequate, though
there was no evidence that he had even read it. The plaintiffs' testimony
about macroevolution, exaptation, natural selection, the fossil record,
classification, and homology went completely unrebutted. Moreover, the
Judge added (opinion, page 84), "the Court has been presented with no
evidence" that either Defendants' testifying experts or any other ID
proponents have any expertise in these areas. Which we knew all along.
Based on all of this, Judge Jones ruled bluntly and clearly that
ID is not science. ID proponents' most common complaint is that Jones
dared to rule on this larger scientific issue, rather than restricting
himself to the religious purposes of the school board. They claim that it
is not a judge's role to interpret science. But judges make these kinds of
decisions every day, when presented with expert testimony to work from.
They do it every time they have to decide a case involving criminal
forensics, medical malpractice, DNA fingerprinting or paternity tests,
product liability, environmental issues, or a host of other issues that
arise in a modern technological society. When the scientific evidence and
the consensus of the scientific community are as clear as they were in
this case, why should the judge refrain from ruling on the scientific
status of ID?
In fact, Judge Jones really had no choice but to
rule on whether or not ID was science. The plaintiffs asked him to rule on
exactly this, and so did the defense. The Thomas More Legal Center's chief
counsel for the defense, Richard Thompson, acknowledged that like the
attorneys for the plaintiffs, the defense had asked the judge to rule on
the question of whether ID was science. They staked their whole case on
the notion that ID was legitimate science, and that therefore teaching it
had a legitimate secular purpose and secular effect, and this outweighed
any religious goals that individual board members might have had. ID
advocates can't complain now, after the fact, that the judge exceeded his
charge. He did exactly what both sides asked him to do. If the ID
supporters didn't take that brief more seriously, they should have.
The Party's Over for the Discovery Institute
where does Judge Jones's decision leave ID? Rejected by the scientific
community, rejected by organizations of science educators, and now
rejected in Federal Court. What does the DI's William Dembski say about
"I think the big lesson is, let's go to work and really
develop this theory and not try to win this in the court of public
opinion," Dembski said in a New York Times interview. "The burden
is on us to produce."
Indeed. That's what the scientists have been
saying all along. And in the same Times article, Richard Thompson
appeared to agree. "A thousand opinions by a court that a particular
scientific theory is invalid will not make that scientific theory invalid.
-- It is going to be up to the scientists who are going to continue to do
research in their labs that will ultimately determine that."
right. And one of these days, there may even be some research that
convinces the scientific community that ID is testable and not purely
religious. Until then, it cannot claim status as a scientific theory, and
it does not belong in the science classroom -- as Judge Jones and the
scientific community both recognized.
The fact is, the Discovery
Institute took a terrible beating in this trial. "Intelligent Design,"
their main industry, which they have peddled relentlessly for over a
decade as the Next Great Idea in science, was revealed as religion, not
science at all. The DI's "wedge strategy" was exposed and established as a
crypto-fundamentalist Christian ideology of politics and social change.
Their alleged "experts" withdrew, leaving the defense in confusion. Their
amicus briefs were ignored by the Judge, and their attempt to append the
"expert witness report" of Stephen Meyer, who had canceled his testimony,
was angrily rebuffed. And after the trial, the DI's Washington office
head, Mark Ryland, publicly squabbled with the TMLC's Richard Thompson,
who claimed that the DI had promised support and then cut and run.
It's over for the Discovery Institute. Turn out the lights. The
fat lady has sung. The emperor of ID has no clothes. The bluff is over. Oh
sure, they'll continue to pump out the blather. They'll find more funding,
at least for a while, from some committed ideologue or another. But no one
with any objectivity will take them seriously any longer as scientists.
They had their fair chance, and they blew it.
And in the end, they
couldn't have done anything else. Because there is no science to ID; it's
just polemics. And now that's been settled in Federal Court.
Copyright Kevin Padian and Nick Matzke 2006
Originally posted at NCSE.